Cooke v. Ontario (Labour), 2012 HRTO 963

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jim Cooke

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Labour and the Ministry of Government Services, Sue Finch, and David Worby

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: May 11, 2012

Citation: 2012 HRTO 963

Indexed as: Cooke v. Ontario (Labour)

WRITTEN SUBMISSIONS

Jim Cooke, Applicant ) Self-represented

Her Majesty the Queen in Right of Ontario ) Peter Dailleboust, Counsel as represented by the Ministry of Labour ) and the Ministry of Government Services, ) Sue Finch, and David Worby, Respondents )

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 15, 2011, which alleged that the respondents discriminated against him with respect to employment because of his disability, and subjected him to reprisal. Specifically, he alleged that the respondents failed to accommodate his disability-related needs, and stopped the accommodation process as a reprisal for filing two grievances.

3In section 14 of the Application, the applicant acknowledged that the facts of the Application are part of a union grievance proceeding that is still in progress, but did not request that the Tribunal defer his Application until the grievance proceeding is completed. He attached grievances dated February 2011, which have allegations of discrimination and reprisal that are similar in substance to those in his Application.

4On February 16, 2012, the Tribunal’s Registrar sent the parties and the applicant’s Union a letter, which requested written submissions on the issue of deferral.

5On March 5, 2012, the respondents filed submissions which requested that the Tribunal defer the Application because the applicant filed two grievances in February 2011, which will be scheduled for a hearing before the Grievance Settlement Board (“GSB”), and the Code-related allegations in the grievances are nearly identical to the allegations in the Application.

6On March 15, 2012, the applicant filed submissions which requested that the Tribunal not defer his Application because the respondents have acted in bad faith during the grievance process, and appear to believe that they are above the law. The applicant did not submit that the grievances have been withdrawn or that the grievance process is completed.

7The Union did not file submissions on the issue of deferral.

8Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

9In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

10The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding. See Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

11In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is an ongoing grievance process, which was started before the filing of this Application, and there is a clear overlap between the facts and issues raised in the grievances and those raised in this Application. Furthermore, the GSB has the authority to interpret and apply the Code to address any allegations of discrimination and reprisal.

12The applicant has not identified any particular circumstance which would cause the Tribunal to depart from its normal approach. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

13Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

14I am not seized of this matter.